Please note the Law may have changed since the publication of article.
Simon Halberstam looks at some of the most important contractual issues relating to Website agreements and focuses specifically on WMA. The article is based on the template Website agreements prepared by the author.
Readers who have missed the previous three articles should refer back to them, as some of the issues covered are equally applicable in relation to WMA.
Both parties i.e. the host and the Client must ensure that they are appropriately registered under the Data Protection Acts 1984 and 1998. The Data Protection Registrar has already tracked down Websites which are not covered by appropriate registration and various prosecutions are already under way. Fines of up to £5,000 may be imposed.
Whereas every problem experienced by the Client or its customers in relation to the Website is important to the Client, it is unreasonable for the Client to be able to make unreasonable demands of the Maintainer. For this reason, it is very important that the different types of problems be categorised in the WMA into different levels of gravity with corresponding levels of urgency. The Maintainer’s response and repair obligations will depend on the gravity i.e. level of the Problem.
Updates v Upgrades
Whereas the former will typically just cover revisions to existing Website data but not any design or other changes to the Website, the former will include enhancements to operation and functionality. It is important that these terms be defined separately and accurately. Whereas Updates will usually be included within the annual maintenance fee, the Maintainer should have the right to charge a supplement for Upgrades.
The contract should provide that the services will only be provided during the Maintainer’s normal working hours. Additionally, provision may be made for “out-of-hours” service but only on the basis of additional charging.
Third Party Dependencies
As the Maintainer will typically be dependent on a variety of third parties in order to be able to provide the contractual services, the agreement should expressly excuse the Maintainer for its failure to provide any services where such failure results from the “failure or interruption of services provided by third parties”. This would include interruption in the ISP connection or datastream information services.
The Client has a contract with the Maintainer and not the ISP or other third party and therefore any performance warranties given to the Maintainer by third parties will not be of any direct benefit to the Client.
The agreement should clearly provide what is being provided for the annual maintenance fee and should entitle the Maintainer to charge extra for any supplementary services. For example, in respect of Updates, there should be a provision which limits the frequency and extent to which the Client can require the Maintainer to update the contents of the Website without incurring additional charges.
If this is the case, WMA should stipulate that changes to the layout and format of the contents of the Website and changes to links fall outside the ambit of the Maintenance Fee and will be chargeable.
Transfer of Website to Different Host
The Maintainer should also consider including a provision allowing it to charge the Client a fee if the Client decides to transfer hosting to another operator. The clause should provide that if the Client decides to terminate the WMA but wishes to continue using the Website designed by the Maintainer, it must pay a one-off licence fee for use of any scripts or coding incorporated into the Website.
Many readers will be familiar with the recent Demon v Godfrey case where Demon were sued because of defamatory material which had been posted on one of their usegroups and which was defamatory of a certain Godfrey. A similar scenario can arise with Website hosts who are contacted and required to “pull a site” because it contains defamatory or otherwise offensive material.
This is a “Catch 22” situation for the Maintainer who may become a party to the defamation if it does not comply but may breach its contract with its Client if it does. WMA should therefore include appropriate wording to enable it to suspend a Website with impunity if it has reasonable grounds for considering the contents to be defamatory or otherwise objectionable.
© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. The contents are intended for general information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.